Henry v Van Eeden

[2005] HCATrans 745

[2005] HCATrans 745

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S88 of 2005

B e t w e e n -

PHILLIP ANDREW HENRY

Applicant

and

THEUNIS VAN EEDEN

Respondent

Application for special leave to appeal

McHUGH ACJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2005, AT 12.02 PM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR R.W.C. ROYLE, for the applicant.  (instructed by Stacks/Goudkamp)

MR J.N. GLEESON, QC:   May it please the Court, I appear with my learned friend, MR B.G. SMITH, for the respondent.  (instructed by Moray & Agnew)

McHUGH ACJ:   Yes, Mr Morrison.

MR MORRISON:   Thank you, your Honours.  Your Honours, this application raises two issues.  The first is the justice of the particular case and the second is when a judge at first instance or an intermediate court of appeal ought draw inferences from facts as found or not in issue. 

Your Honours, on an open road in broad daylight in fine weather we have two vehicles colliding in the centre of the road.

GUMMOW J:   We know that.

MR MORRISON:   Both drivers suffered severe brain damage and could not give evidence.  Each sues the other.  The trial judge made findings of fact which are not the subject of challenge but declined to draw an inference of negligence and so did the Court of Appeal in New South Wales.  Can we just briefly take your Honours to the exhibits book which has been provided and your Honours will see from the photographs, perhaps commencing conveniently at photographs numbered 3, 4, 5 and 6 ‑ ‑ ‑

McHUGH ACJ:   I am not sure that I have the exhibits book.  So what are you taking us to ‑ ‑ ‑

MR MORRISON:   Photographs which are numbered 3, 4, 5 and 6.

McHUGH ACJ:   We do not have anything like that. 

MR MORRISON:   Can I hand up immediately two copies.  I am grateful to my learned friend.

McHUGH ACJ:   Yes.

MR MORRISON:   Those photographs demonstrate the nature of the scene, the openness of the road and the circumstances.  Can I then take your Honours to the second‑last document in the volume which is a plan of the scene prepared immediately after the accident by a particularly diligent police officer.

McHUGH ACJ:   This is at 34, is it?

MR MORRISON:   Yes, your Honour.  Your Honour, our client’s Commodore was heading west.  The Toyota which collided with it in the centre of the road was heading east.  Your Honours can see that starting at a point 29.7 metres before the impact, but commencing and finishing on our client’s correct side of the road there appears a twin line of skid marks wholly on the Commodore’s correct side of the road.  The converging skid marks indicates that after about 20 metres the front of the vehicle swivelled as it skidded so that the front of it collided with the Toyota which was then in the centre of the road.

There were no skid marks from the other vehicle and no indications of any attempt by the other vehicle to move out of its position in the centre of the road.  There was of course no direct evidence of negligence by either party.  However, the law of course is that a tribunal is entitled to draw inferences from even slim circumstantial facts that exist as long as they go beyond mere speculation. 

In this case, the trial judge considered and rejected as remote or fanciful various other hypotheses such as a kangaroo hopping onto the road coincidentally with the car coming the other way or an intentional suicidal act by a driver.  The trial judge must have been correct in that regard because not merely did the emergency which caused the Commodore driver to apply the brakes commence at that point but he, on the trial judge’s findings, continued to administer those brakes for something like three seconds.  In other words, it was not just the commencement of emergency braking, it was the maintenance of emergency braking right up until the end.  The obvious inference was that the Commodore driver put on his brakes and maintained his brakes because of the presence of the other driver in the centre of the road in a position of danger to him. 

GUMMOW J:   There was expert evidence about this, was there not?

MR MORRISON:   There was which ultimately did not take the court anywhere.  The expert evidence largely devolved into an issue about the precise angle of the vehicles at point of impact and into an issue about why the Commodore swivelled slightly after about 20 metres.  Neither of those issues ultimately were of any consequence because the trial judge accepted that whether under four wheel lock up or two wheel lock up there was no opportunity for the Commodore driver to have done anything about it anyway.  So that once he was engaged in and maintaining emergency braking, it does not matter why his vehicle swivelled, nor does it matter what his precise angle was at point of impact.  It was not his fault.  That was the trial judge’s finding; it was not disturbed by the Court of Appeal.

Now, we say the overwhelming inference, the one that the trial judge described as initially compelling, was that the other vehicle which left no brake marks, which was not over as far as it could to its own correct side of the road, was the cause of the commencement and maintenance of the emergency braking and it is added to by the trial judge’s finding that country drivers usually travel in the middle of the road for reasons which she gave and that drivers customarily pull over as another vehicle approaches.  We say that not merely was it the more likely inference of negligence, and that is all we needed to establish, but it was an overwhelmingly probably inference of negligence in the circumstances where there were those skid marks and no indication of any conduct to contraindicate the inference on the part of the other driver.

The Court of Appeal seemed to endorse the trial judge’s finding that the scenario we put forward was not compelling.  That one picks up from 103, line 52 and we say that was the wrong test.  It only had to be the more likely explanation.  We say that in the circumstances of this accident it beggars belief that there was not fault on the part of someone and that in circumstances where there was good evidence ‑ ‑ ‑

McHUGH ACJ:   Well, maybe part of the problem was the way the case was conducted, that both parties wanted a clean bill of health.  They might have had more success if they had agreed that they were both responsible to some extent, but anyway ‑ ‑ ‑

MR MORRISON:   Your Honour will have perceived that neither driver, of course, was in a position to know what had happened ‑ ‑ ‑

McHUGH ACJ:   No, I appreciate that.

MR MORRISON:   ‑ ‑ ‑ and that her Honour considered and rejected the possibility that both drivers were at fault, so that that really was not an option in reality in the circumstances of this particular case.  But there was clear and compelling evidence that the Commodore driver started and finished relevantly on his correct side of the road.  In those circumstances we say there was a more likely inference which should have been drawn, a Luxton v Vines type inference, and that both the trial judge and the Court of Appeal erred in failing to draw that inference.

McHUGH ACJ:   Thank you, Mr Morrison.  Yes, we need not hear you, Mr Gleeson. 

This application concerns questions of fact and, in particular, the inferences to be drawn from certain facts.  There is nothing about the case that would warrant a grant of special leave to appeal.  In those circumstances the application must be refused with costs.

AT 12.11 PM THE MATTER WAS CONCLUDED